> there's nothing to stop her from suing.

> there is nothing stopping this person from filing suit

Yes there is. Pursuing litigation costs time and money. The odds of a private individual engaging a suit over something this trivial are about zero, as are the odds of any competent attorney taking the case. Copyright litigation is about money. Suits are filed against parties with deep pockets by other parties seeking economic gain, or by parties with deep pockets seeking to to maintain absolute control of their 'intellectual property'. And in 2011, nobody with any money or power gives a rat's ass about The Waltons.

Fair Use law is a set of rough principles. Strictly speaking, in legal terms there is nothing to stop anyone from suing in ANY instance of quotation. Litigation over quotation is ALWAYS a question of probability, and that probability is ALWAYS more a matter of pragmatics than how the case law actually breaks down.

As far as the law is concerned, the fact that the work in question was not published commercially, but available for anyone to see on a web board, drastically weakens any claim the author might make. The key question for Mike would be how he uses the quote. If his purpose is different from the purpose of the original text -- if he is analyzing it, referencing it in a critique -- that's a 'transformative use' which is clearly protected. If he was just quoting without comment, employing the work for the value it had in it original context, that would not be protected. (Again, not that these really matter in a practical sense regarding litigation, but the distinction is useful for establishing one's own sense of ethics).

And to answer the original question: No, the denial of permission has no effect on the Fair Use status. Fair Use means you don't have to have permission. It's not about asking. It is routine for the quoter to ask the quotee as a courtesy, and then proceed under fair use if permission is not forthcoming (usually the requests are simply ignored).

(I think, if there are real stakes involved and litigation is likely (say NBC is making a documentary on John Lennon, asks Yoko Ono for permission to use some copyright material, she refuses, NBC uses some snippets anyway, Yoko sues...) a request for permission may have some influence if a case is brought, but it's not determinitive, and I can't remember which way it breaks, or even if that's consistent.)

In sum, it sounds like the Waltons fan just doesn't want her fan discourse subjected to academic scrutiny, and such scrutiny is exactly one of the things Fair Use law exists to protect. This is basic free speech stuff. If you make an utterance in a public forum, you can't use copyright to squelch replies -- unless of course you're Disney in which case you can use your bottomless pit of money and lawyers to pummel just about anyone into submission.

Goodnight, Screen-L


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